The sound of silence

Thursday

When you walk into One Love Caf&eacute; on Main Street you&rsquo;re greeted by the tangy aroma of Jamaican Jerk Chicken, vibrant paintings on the walls and a kind word from owner Venice Fouchard.

What you aren&rsquo;t greeted with is music.

&ldquo;It&rsquo;s become a joke here now,&rdquo; says Fouchard. &ldquo;My regulars will come in and ask &lsquo;Venice, why no music?&rsquo; and I just say &lsquo;ASCAP.&rsquo;&rdquo;

One Love Café has stopped live music performances.ASCAP &mdash; the American Society of Composers, Authors and Publishers &mdash; is one of several music-licensing giants controlling the rights to much of the popular music you hear everyday. Since she opened her restaurant seven years ago, Fouchard says ASCAP and BMI (Broadcast Music, Inc.) have &ldquo;harassed&rdquo; her on a regular basis about paying them licensing fees.

&ldquo;They are really belligerent on the phone and they call constantly,&rdquo; she says. &ldquo;I also believe that they call sometimes and don&rsquo;t say anything, just trying to listen to see if I am playing any music in the background.&rdquo;

ASCAP and BMI, which licenses about half the music played in America today, and SESAC (the Society of European Stage Authors & Composers) monitor establishments that play music, whether they are hole-in-the-wall caf&eacute;s with someone sitting on a stool strumming a guitar, or large bars and restaurants with full-blown music scenes. The companies are responsible for making sure that any place playing licensed music pays a fee, ensuring that the proper royalties are paid to musicians and composers for the public performance of their music.

&ldquo;It really gets to the point where all these people want is a contract from you, because no matter how you flip the script they have an answer for you,&rdquo; says Fouchard.

One Love used to have live musical performances sporadically throughout the year, with musicians playing original music.

&ldquo;That was the first thing I&rsquo;d tell an artist when they stopped in and asked if they could perform here,&rdquo; she says. &ldquo;&lsquo;You can&rsquo;t play any covers.&rsquo; And they are usually happy about not doing cover songs.&rdquo;

Now, Fouchard says, the hassling from ASCAP and BMI became too much for her, and she decided to stop hosting live acts.

&ldquo;I think it was finally last year when I said &lsquo;I&rsquo;m so tired, I&rsquo;m so drained,&rsquo; and I wrote back to [ASCAP and BMI] saying that I don&rsquo;t play live music here anymore. And then I had to tell my customers that we wouldn&rsquo;t be having live music at the caf&eacute;.&rdquo;

Paying licensing fees is something that all public establishments must deal with if they are going to play music. But in Worcester, several local business owners assert that these companies are aggressive to the point of harassment.

ASCAP and BMI insist they are just doing their job to protect the interests of the artists they represent.

&ldquo;We will continue to call if they continue to play music [without a license],&rdquo; says Vincent Candilora, Senior Vice President of Licensing for ASCAP. &ldquo;We have an obligation to the members of ASCAP, which is the only organization run solely by songwriters, producers, musicians and publishers.&rdquo;

Asked why ASCAP would tell an establishment it cannot play original live music, as Fouchard insists she was told, Candilora responds that there is no reason such a demand would be made.

&ldquo;I&rsquo;d like to know specifically who told them that they could not play original music, because they can,&rdquo; he says. &ldquo;These places say that they play only original live music, but what do you play in between sets? During breaks? Before the live acts go on? To be honest, we&rsquo;ve been doing this for many years and there are very few establishments that just play original music.&rdquo;

Assertions of &ldquo;original only&rdquo; music are rarely based in fact, company representatives say.

&ldquo;Most venue owners and managers don&rsquo;t know about the songwriters who own the songs played in their establishments,&rdquo; says Jerry Bailey,&nbsp;Senior Director of Media Relations and Business Communications for BMI. &ldquo;They simply assume that a performer in their venue is playing &lsquo;original&rsquo; tunes because that may be the instruction given the performer.&nbsp;That defense has not held up in court.&rdquo;

*****

The owner of Acoustic Java says he's had multiple go-arounds with BMI, and sticks to live original music.Stephanie Katz, who played guitar and sang indie/folk tunes at One Love Caf&eacute; every other Sunday for more than a year, counters that the place upheld the original-music pledge. Katz says that when she performed she often brought in other local and regional musicians who, like her, played their own compositions because she knew that Fouchard was not licensed.

&ldquo;In some ways this made it an even better venue, because it&rsquo;s all original material and it is all small artists, so you know you&rsquo;re going to get something different,&rdquo; says Katz. &ldquo;But I just came home from being away for a few months, and Venice told me she&rsquo;s not hosting music anymore because she can&rsquo;t handle the stress of being harassed by BMI. I definitely understand why she made the decision, but it&rsquo;s a big loss for local musicians and music appreciators.&rdquo;

David Fullerton, owner of Acoustic Java in Worcester, describes his interactions with BMI representatives as frequent and &ldquo;nasty.&rdquo;

&ldquo;Some of them were extremely rude and extremely aggressive, and occasionally insulting,&rdquo; he says. &ldquo;When I bought the caf&eacute; in 2007, the previous owners told me about BMI and how they were being harassed by them; it was kind of a cautionary tale. [The original owners] told me that they had an open mic night and somebody had come into the caf&eacute; wearing a trench coat. He sat in on the performance and heard a song that was a cover that BMI owned the rights to. That man in the trench coat was a BMI rep and told the owners that they had to buy a license or BMI would prosecute them. So they stopped the open mic nights.&rdquo;

Fullerton received a call from BMI within the first week of taking over the business. The calls continued &hellip; and continued.

&ldquo;They would explain to me that they had an account with us, or they&rsquo;d have some other reason to call, but I would tell them I had no information about it and that they would have to contact the original owners,&rdquo; he says. &ldquo;But they would keep calling and asking me questions. I essentially got in the habit of hanging up on them because they wouldn&rsquo;t let us get off the phone.&rdquo;

After doing some research about BMI, Fullerton says he understands that the licensing organizations are designed to help musicians, but &ldquo;it doesn&rsquo;t always work out that way in practice. In theory, they do protect the rights of people who play music for a living and it seemed like not a thing to really rail against but to accept. So I either had to buy a license or not play live music.&rdquo;

Fullerton decided to call BMI and ask them to cease the relentless phone calling.

&ldquo;[The manager I spoke with] was somewhat apologetic and he said he would make sure I wouldn&rsquo;t receive further calls. I told him we don&rsquo;t play any music under their copyright, but he told me it doesn&rsquo;t matter and that I still had to buy a license. The manager said it&rsquo;s complicated because sometimes it&rsquo;s not always clear what songs someone&rsquo;s playing. I said &lsquo;Well let&rsquo;s just say that it is clear, and they are only playing original music or something they&rsquo;ve written.&rsquo; After 30 minutes on the phone he finally admitted, &lsquo;Well if there really is no copyright you really don&rsquo;t have to buy a license.&rsquo;&rdquo;

So Fullerton now has live performances at Acoustic Java with musicians who only play original music. It was a struggle to reach this point, he says.

&ldquo;My business has been affected. We play live original music, but that&rsquo;s it. The attendance is extremely low usually. It&rsquo;s just easier to attract a larger crowd if you can play anything. It didn&rsquo;t make sense for me to pay the licensing fees, which are in excess of $1,200 [if fees are paid to all three companies, ASCAP, BMI and SESAC]. And I don&rsquo;t really generate that much in a year off of open mic nights, at least not in a caf&eacute; like mine.&rdquo;

*****

Lucky Dog owner Erick Godin questions how the licensing companies fi gure their fee structures.Candilora of ASCAP says licensing fees are generally tied to the size of the establishment.

&ldquo;We use the fire code of each establishment, their max occupancy, and we work off of that,&rdquo; he says. &ldquo;For example, if you were only playing CDs at your caf&eacute;, it would be $3 times your occupancy, and that would be your rate for the year. So if your occupancy was 100 it would be $300 a year. That&rsquo;s less than a dollar a day. If you play live music less than three nights a week, that is $4.30 times your capacity. And if you do both we offer a 33 percent discount on your recorded music fee. It&rsquo;s all pretty logical.&rdquo;

But for small businesses like One Love Caf&eacute;, the fees can be too much.

&ldquo;There are some places where it&rsquo;s feasible [to pay] and then there are some places where it&rsquo;s not,&rdquo; says Fouchard. &ldquo;And I think that those places that are feasible will go right ahead and sign their contract and pay the fees. It&rsquo;s not worth doing it for us.&rdquo;

For Farid Aude, owner of the Sahara Caf&eacute; and Restaurant in Worcester, paying the licensing fees is doable, though a nuisance.

&ldquo;Obviously nobody likes to pay fees,&rdquo; he says. &ldquo;I can afford it, but I don&rsquo;t think it makes much sense to be paying as much as we do. But it&rsquo;s the law.&rdquo;

Aude says that if he added up the fees he has to pay to ASCAP, BMI and SESAC the total is close to $2,000 a year.

&ldquo;We&rsquo;ve been open for 15 years, but I didn&rsquo;t get a license until about five years ago,&rdquo; he says. &ldquo;I always ignored their requests because we were playing primarily ethnic music and I thought that I didn&rsquo;t fit into that category. But they kept insisting and I felt I had to protect myself.&rdquo;

Besides paying a fee for playing live covers, establishments are also charged for playing any CDs or public radio.

&ldquo;You can play XM Satellite radio,&rdquo; says Fullerton, &ldquo;because satellite radio pays these companies to play the music.&rdquo;

It&rsquo;s not only small cafes that have issues with the fees. Some larger venues are also struggling to make payments.

&ldquo;The way that they formulate [the fee] is too general,&rdquo; says Erick Godin, owner of the Lucky Dog Music Hall. &ldquo;They figure your capacity times the number of nights you are open, but if I only have 10 people in our place all night, I&rsquo;m still paying for 230. I think they need to be a bit more responsible and work with each venue on a monthly basis, like taxes &mdash; whatever you sell you get charged for that. If they want to get money for their artists, they should have to do a bit more than sit behind a desk and make phone calls.&rdquo;

Godin has been on a payment plan with the licensing companies for years, and although he says he&rsquo;s not particularly frustrated with ASCAP, BMI or SESAC, he does understand why some business owners can be caught off guard.

&ldquo;Most people that start a business have no idea these companies even exist,&rdquo; he says. &ldquo;A little fear of a court case or collection agencies really wakes up a business owner. I knew about it before I started so they weren&rsquo;t aggressive with us until I let my payments fall off for a while, and now I get threatening phone calls and more letters in the mail. For the most part, I don&rsquo;t feel like they are too aggressive. As much as I disagree with it, they are all still trying to get paid, just like everybody else. They just have a huge armada of lawyers and decades of triumph behind them.&rdquo;

ASCAP regularly dispatches employees to ferret out establishments that may be playing licensed music without paying a fee.

&ldquo;These licensing managers work out of their cars and their homes,&rdquo; says Candilora. &ldquo;They are all over the place. They subscribe to local newspapers and arts rags. It&rsquo;s the same way you would pursue any sales lead.&rdquo;

Candilora notes there are licensing managers throughout the region who stay on top of any new business that opens, and to find them they look where the alcohol is being served.

&ldquo;We have a number of sources we use. When bars open or they change hands, we will look at the Alcohol and Beverage Association for each state. Where there&rsquo;s beer and wine, there&rsquo;s usually music.&rdquo;

Corey Graves plucks the strings at One Love, but only for a Worcester Mag cover shoot. Otherwise, live music is no longer allowed.It&rsquo;s still a touchy subject, however, when it comes to the way the companies approach businesses to collect their fees.

&ldquo;I don&rsquo;t think they believe Venice that she&rsquo;s not playing licensed music,&rdquo; says Katz, &ldquo;and even if they do, I think it pisses them off that some little independent restaurant owner has a legitimate way to get out of paying them their fees. BMI is this huge multi-million dollar corporation that is used to bullying around pretty much everyone, and here&rsquo;s this little immigrant woman from Jamaica not paying up, and it challenges their position of power.&rdquo;

*****

For BMI and ASCAP, it&rsquo;s all about doing what&rsquo;s fair and what&rsquo;s right.

&ldquo;If you had a bar and you got a license to play music, and you see a bar across the street that did not pay for a license but still plays music anyway, don&rsquo;t you think that&rsquo;s a little unfair,&rdquo; says Candilora. &ldquo;Doesn&rsquo;t it give them an advantage? That&rsquo;s the reason why we don&rsquo;t go away.&rdquo;

At BMI, the protests largely fall on deaf ears.

&ldquo;We usually don&rsquo;t have much use for the term &lsquo;original music,&rsquo; because we represent about 6.5 million &lsquo;original&rsquo; compositions owned by about 400,000 songwriters, composers and music publishers,&rdquo; says Bailey. &ldquo;BMI does not own the music, and the company does not earn profits.&nbsp;All revenue received, after expenses, is paid out to the songwriters, composers and publishers who sign with BMI to represent them. BMI does not represent record companies or recording artists, unless those artists compose music.&nbsp; Our focus is on helping songwriters receive payment when their songs are played in public.&rdquo;

Fouchard says she misses the sound of live music in her caf&eacute;.

&ldquo;It&rsquo;s very frustrating because it used to be so warm in here on Sunday, when I had singers here like Stephanie. She&rsquo;s funky and original; she plays a musical saw. And I tell these BMI and ASCAP reps to come and listen to a musician like this and then tell me how you have this in your &lsquo;repertoire.&rsquo; It really broke my heart when I realized I couldn&rsquo;t do it anymore. We used to have a ball.&rdquo;

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